Legal Document: BERKSHIRE CAMPGROUND, LLC vs. BERKSHIRE RV SALES, LLC JPS

On March 08, 2024 a COMPLAINT/PETITION - CASE TRANSFERRED FROM DELAWARE MUNICIPAL COURT was filed involving a dispute between Berkshire Campground, Llc, and Berkshire Rv Sales, Llc, for (CV) CIVIL COMMON PLEAS in the District Court of Delaware County.

Preview
oof
Me
rib
rfba Ub PAL URE
IN THE DELAWARE MUNICIPAL COURT OF DELAWARE COUNTY, DOHIGAHE Unio
Justice Center + 70 North Union Street, Delaware, Ohio 43015 + Voice: 740.203.1500 » Facsimile: 740.203. 1509 WEE Rog. at a
EB29 AN 8:50
Berkshire Campground, LLC 24-(WH-0302
JUDGE JAMES P. SSE DINOVO
Plaintiff
ERK
VS. Case No. 23 CVG 2394

Journal Entry / Magistrate Order
Berkshire RV Sales, LLC
Defendant

This matter is before the court on Plaintiff's complaint for possession of premises (eviction) and
Defendant’s timely filed counterclaim on February 14, 2024, which includes a general jury demand and a prayer
for monetary damages in excess of $25,000
10
Pursuant to Civil rule 13(f) the counterclaim is certified to the Delaware Common Pleas Court for all
ll
further proceedings The Delaware Municipal Court retains jurisdiction over matters raised in Plaintiff's
12 complaint (eviction)
13 Assemble ALL of the original papers and transmit the same to the clerk of Delaware Common
Clerk:

14 Pleas Court for further proceedings. The Delaware Municipal Court shall retain a copy of all of the original
papers for further proceedings as to Plaintiff's complaint.
15
Clerk: forthwith serve a copy hereof per Civ Rs 5(B), 53 & 58. No party may assign as error on appeal
16
the adoption of any finding of fact or legal conclusion unless the party timely and specifically objects to that
17 findin; clusion as required by Civil Rule 53(D)(3).

18
February 20, 2024 SMM AA
wy
19 Gaggistrate Kevin Pelanda Ze.

20
Blank Journal Entry,jm.docx 0220241637
21
copy served on AH 20
[ Kutell, Attorney for Plaintiff
om,
Nae Hrabcek, Attorney for Defen ac
Shc
23 =e
a=
ERERe
24
reo
Pac
25 PES
BES
On
oF
26 Sar
a=
27

1
Journal Entry / Magistrate Order
“y

FILED
IRRE
MUNILLPAL OG
IN THE DELAWARE MUNICIPAL COURT OF DELAWARE COUNTY, OHS
Justice Center + 70 North Union Street, Delaware, Ohio 43015 + Voice: 740.203.1500 + Facsimile: 740.203.1599 cee oe AT Se 8
wi
Berkshire Campground, LLC
Plaintiff CNY Dinove
VS. Case No. 23 CVG 2394
Journai Entry / Magistrate Order
Judge Hemmeter
Berkshire RV Sales, LLC
Defendant

This matter came on for hearing on February 15, 2024, on Plaintiff's complaint for possession of
premises (eviction), and other pleadings and motions filed prior to that date, Attorney Russell Kutell appeared
with a representative of Plaintiff. Attorney Michael Hrabcek appeared with a representative of Defendant.
10
Defendant filed an answer and counterclaim on February 14, 2024, which included a general jury
1
demand and a prayer for monetary damages in excess of $25,000. At the same time, Defendant filed a motion
12 to transfer the matter to the general-jurisdiction court.
13 Also on February 14, 2024, Plaintiff filed a motion for a protection order regarding Defendant’s

14 subpoena requiring appearance and production of records by a nonparty, First Acceptance Title Agency.
The matter is assigned to the magistrate for all purposes unless otherwise expressly ordered.
15
Counterclaim
16
Defendant’s counterclaim alleges damage to its land (adjacent to land occupied by Plaintiff) by failed
17 operation of a sewage lift station benefitting Plaintiff's land. Plaintiff's complaint seeks exclusive possession
18 of land occupied by Plaintiff including a structure occupied, at least in part, by Defendant.
The issues raised in Plaintiffs complaint do not appear to implicate or require resolution of legal or
19
factual issues that would materially effect resolution of issues raised in the counterclaim. The pleadings do not
20
appear to implicate issues related to title to land occupied by either party. Rather, issues raised in the pleadings
21
appear to be limited largely to rights, if any, of possession, not title. Defendant’s counterclaim for monetary
22 damages beyond municipal-court jurisdiction does not appear manifestly without good-faith basis in law or fact.

23 Wherefore, the counterclaim requires certification to the general-jurisdiction court for all further
proceedings. At the same time, however, the municipal court has and retains jurisdiction over Plaintiff's
24
complaint for restitution of premises. By separate order, the court will direct the clerk to forward the original
25
papers to the clerk of the common pleas court for further proceedings as to matters raised by the counterclaim.
26 Protective Order
27 The broad language of the subpoena issued by Defendant appears likely to result in production of

28 documents an appreciable portion of which is not likely to lead to discoverable evidence. The time for
production has expired and the parties advise that the deponent has not responded, yet, to the subpoena.
29

No
1
Journal Entry / Magistrate Order
>) -)
.

Wherefore, the subpoena is QUASHED. The deponent may disregard pending further proper notice.
Defendant may reissue a more specific subpoena limited appropriately to result in production only of
documents likely to lead to discoverable evidence. Discussion by counsel at the hearing appeared to indicate
reasonable likelihood that they will resolve the issue by agreement. Inasmuch as Plaintiff sought protection,
and the time for response is now already expired, Plaintiff shall communicate this order to the deponent.
Jury Trial
The matter shall come on for jury trial on April 4, 2024, at 8:00am in Courtroom B.

Criminaltraffic matters have priority and may require reassignment of trial herein.
The matter shall come on for oral pretrial on March 19, 2024, at 1:30pm in Courtroom B.
No later than March 18, 2024, any party requesting a jury trial shall submit complete proposed jury
instructions covering all issues raised by the complaint or reasonably expected to be submitted to the jury at
10 trial Instructions shall be in read-ready form for recitation to the jury. Instructions shall be submitted in writing
1 to the clerk and to the court at kpelanda@municipalcourt.org in digital format (Wordperfect, Word, DOS text,
editable PDF). At the same time, in the same form, the party requesting jury shall submit proposed jury
12
interrogatories, if any, AND proposed verdict forms. Email transmission SHALL reflect submission to
13
opposing counsel. Proposed corrections/additions shall be submitted by opposing counsel in the same form
14
PRIOR to the oral pretrial. Failure to timely submit proposed instructions may be deemed waiver of jury.
15 Jury trial typically requires four to eight hours excluding deliberation time. A party requesting a jury

16 trial shall timely deposit funds to secure costs pursuant to local rule.
A party requesting a jury trial may file and serve a waiver PRIOR to date of the assigned oral
17
pretrial. In such event, the pretrial shall be cancelled without further order, neither party shall appear. Further,
18
the matter shall thereupon proceed to bench trial on April 11, 2024, at 11:00am in courtroom C without
19 further notice. The waiving party shall ensure timely notice to opposing counsel so as to avoid unnecessary
20 appearance. Typically, bench trial requires about one - two hours.

21 Clerk: forthwith serve a copy hereof per Civ Rs 5(B), 53 & 58. No party may assign as error on appeal
the adoption of any finding of fact or legal conclusion unless the party timely and specifically objects to that
22
finding or clusion as required by Civil Rule 53(D)(3).
23

MégiStrate Kevin Pelanda
21, 2024
dep
U0 ci
25
Blank Journal Entry,jm.docx 0221241247
26
copy served on oe et oo 4H

2
Journal Entry / Magistrate Order
FILE
WAi
MU, AL C9
DELS ART2 eS ald

IN THE MUNICIPAL COURT OF WHFEBIS py, 03
DELAWARE COUNTY, OHIO
CINDY Dixoyva
LERK
BERKSHIRE CAMPGROUND, LLC,
Case No. 23CVG02394
Plaintiff,

-v- Judge

BERKSHIRE RV SALES, LLC,

Defendant.

NOTICE OF APPEARANCE

PLEASE TAKE NOTICE that Caitlin E. Vetter of the law firm Frost Brown Todd LLP,

hereby enters her appearance as additional counsel of record on behalf of Plaintiff, Berkshire

Campground, LLC, and requests to be included in all communications concerning the case.

Caitlin E. Vetter (0090665)
FROST BROWN TODD LLP
10 West Broad Street, Suite 2300
Columbus, Ohio 43215
(614) 464-1211 / (614) 464-1737 (fax)

Respectfully submitted,

¢s/ Caitlin E. Vetter
Caitlin E. Vetter (0090665)
Russel J. Kutell (0067756)
Nicole Mattingly (0101556)
FROST BROWN TODD LLP
10 West Broad Street, Suite 2300
Columbus, Ohio 43215
(614) 464-1211 / (614) 464-1737 (fax)
cvetter@fbtlaw.com
tkutell@fbtlaw.com
nmattingly@fbtlaw.com
Attorneys for Plaintiff Berkshire Campground, LLC
-

CERTIFICATE OF SERVICE

Thereby certify that a true and accurate copy of the foregoing has been served upon the
following via electronic mail on February 19, 2024:

Michael Hrabcak, Esq.
HRABCAK & COMPANY LPA.
67 East Wilson Bridge Road
Suite 100
Worthington, OH 43085
Phone: (614) 781-1400
Fax: (614) 781-1171
mike@hrabcaklaw.com
Attorney for Defendant

/s/ Caitlin E, Vetter
Caitlin E. Vetter (0090665)
FROST BROWN TODD LLP

0147047.0760531 4854-3851-6390v2
+
°)
My

IN THE MUNICIPAL COURT OF 204 Fep th
DELAWARE COUNTY, OHIO Py hue
BERKSHIRE CAMPGROUND, LLC, Chup, Ny
Case No. 23CVG02394 Ch Ep OY
Plaintiff,
-y- Judge

BERKSHIRE RV SALES, LLC,

Defendant.

MOTION FOR PROTECTIVE ORDER
~ ~ ~
Pursuant to Ohio Civil Rule 26(C), Plaintiff Berkshire Campground, LLC, by counsel,

respectfully moves the Court for a Protective Order in connection with the subpoena sent by

Defendant Berkshire RV Sales LLC, to nonparty First Acceptance Title Agency. In support of

this Motion, Plaintiff states as follows:

I BACKGROUND

On December 18, 2023, Plaintiff filed this action for forcible entry and detainer seeking

to remove Defendant from Plaintiff's property. Plaintiff purchased the property located at 1848

Alexander Road, Galena, OH 43021 (the “Property”) on or around August 19, 2022 from

nonparty Davis Family Investments, Ltd. In connection with the purchase of the Property,

Plaintiff learned that. Defendant was operating a business on the Property, while Defendant

actually owned the parcel next to the purchased Property.

After purchasing the Property, Plaintiff repeatedly advised Defendant that it was not

permitted to occupy the Property, to no avail. On December 11, 2023, Plaintiff issued a 3-day

notice to Defendant. Thereafter, Plaintiff initiated this lawsuit to remove Defendant from

Plaintiff's Property.
-) -)

On Monday, February 12, 2024 (three days before the scheduled FED Hearing), Plaintiff

learned for the first time that Defendant had issued a subpoena to nonparty First Acceptance

Title Agency (“First Acceptance”) in connection with this action. Despite ‘representing to this

Court that Defendant served a copy of the Subpoena to Plaintiffs counsel, in fact, Defendant

failed to provide any such notice of the Subpoena. Rather, Plaintiff received a copy of the

subpoena from nonparty First Acceptance — not from Defendant.

In the Subpoena, Defendant sought the entirety of First Acceptance’s file pertaining to

Plaintiff's purchase of the Property from nonparty Davis Family Investments. In particular,

Defendant demanded production of:

1. The entire closing and title file and ail documents that you have in your possession

regarding the closing of properties PPN: 417-310-02-003-000 and PPN: 417-420-02-

023-000. Each property focated in Delaware County, Ohio and the General Warranty

Deeds recorded with the Delaware County Recorder’s Office on September 19, 2022

in book 1192, page 2004-2008.
Equally as troubling as its breadth, the subpoena demands the production of the entire file

by 9 AM on Wednesday, February 14, 2024. First Acceptance received the Subpoena on

Saturday, February 10, 2024. Stated differently, Defendant provided nonparty First Acceptance

with two business days to gather, review, and produce the entire file for the transaction. This

provided nonparty First Acceptance with virtually no time to respond or review the file for

confidentiality.
y
There can be no dispute that the file is replete with confidential personal and financial

information belonging to Plaintiff and Plaintiff's principals, including, but not limited to, social

security numbers, loan information, bank and account numbers — all of which should be withheld
- -)

and none of which has anything to do with Defendant’s improper occupancy of the Property.

IL. ARGUMENT

A. Defendant Failed To Comply With Rule 45.

By its terms, Ohio Civil Rule 45 requires that a subpoena “allow reasonable time to

comply.” Civ. R. 45(C)(3)(a). Here, the timeline for responding to the subpoena is unreasonable.

Defendant claims to have issued the subpoena on February 6, and nonparty First Acceptance

received the subpoena on Saturday February 10. Defendant demanded production of the File by

9 AM on Wednesday February 14. In short, nonparty First Acceptance had 2 business days to

respond. This certainly does not provide sufficient time to respond and conduct the due

diligence necessary to protect Plaintiff's confidential information within the file.

The timeline issue is compounded by Defendants’ failure to provide Plaintiff's counsel

with any notice of the Subpoena. Rule 45(A)(3) requires a party issuing a subpoena to “serve

prompt written notice, including a copy of the subpoena, on all other parties... .” Civ. R.

45(A)(3). Indeed, Defendant’s counsel represented to the Court that notice was provided via

email on February 6, 2023. See Notice of Issuance of Subpoena (filed Feb. 6, 2023). In fact,

however, no such notice was provided, and Plaintiff only learned of the subpoena on Monday,

February 12, from nonparty First Acceptance. In short, Defendant failed to comply with Rule

45, and this alone is grounds for this Court to quash the subpoena and/or grant this motion for

protective order,

Defendant’s failure to give proper notice also gave Plaintiff very limited time to review

the Subpoena and raise any objections — the very purpose of the rule requiring notice. See

Gangale v. Coyne, 2022-Ohio-196, {| 18, 183 N.E.3d 1245, 1250 (stating “the notice requirement

in Civ. R. 45(A)(3), ie. that a party issuing a subpoena ‘shall serve prompt written notice,
+)
*y

including a copy of the subpoena, on all other parties,’ ‘like its counterpart in [Fed.R.Civ.P.

45(b\(1)], is intended ‘to afford other parties an opportunity to object to the production or

inspection”).
.
Because the Subpoena fails to comply with Rule 45 — both for unreasonable time and

lack of notice to Plaintiff's counsel - the Subpoena is improper. A Protective Order is

appropriate and no production should be made in response to the Subpoena.

B. The Subpoena Is Overbroad.And Seeks Confidential Information.

This Court has the inherent authority to control and supervise discovery in actions

pending before it. This includes, in appropriate circumstances, such as here, issuing protective

orders forbidding or limiting certain forms of discovery.

Indeed, Ohio Civil Rule 26(C) ‘specifically provides “that a protective order is appropriate

when a trade secret, or other confidential research, business development, or commercial

information is sought.” Byrd v. Lindsay Corp., 7" Dist. Mahoning, 2020-Ohio-5461, 935. In

particular, Rule 26(C)(7) expressly states:

Upon motion by any party or by the person from whom discovery
is sought, and for good cause shown, the court in which the action
is pending may make any order that justice requires to protect a
party or person from annoyance, embarrassment, oppression, or
undue burden or expense, including ... that a trade secret or other
confidential research, development, or commercial information not
be disclosed or be disclosed only in a designated way ....

Civ. R. 26(C)(7). Consistent with this, Ohio courts have granted party’s motions for protective

order where a subpoena sought confidential information in which the party had a privacy

interest. See, eg. Razick v. Tayeh,8" Dist. Cuyahoga, 2023-Ohio-3063, 415. Particularly

relevant here, Ohio courts have recognized such a privacy interest in financial information and

records. Sze, e.g. Gangale v. Coyne, 2022-Ohio-196, { 21, 183 N.E.3d 1245, 1251, appeal not
*) +)

allowed, 2022-Ohio-1687, ] 21, 166 Ohio St. 3d 1510, 187 N.E.3d 562 (finding party “clearly

has, a personal right to, and privacy interest in, the financial documents sought” including

“personal and business tax returns and financial records”)

In the context of protective orders regarding subpoenas, “Courts apply a balancing test to

determine whether they should grant protective orders, weighing the competing interests served

by allowing discovery to proceed against the harm that may result from production of the

discovery.” /d. (internal citations omitted). One consideration is relevance, because “a subpoena

duces tecum issued to a nonparty pursuant to Civ. R. 45 is subject to the scope of discovery as

defined by Civ. R. 26(B).” Gangale, 183 N.Ed.3d at 1253.

Here, the subpoena is overly broad and harassing both to Plaintiff and nonparty First

Acceptance, particularly when weighed against the minimal (if any) relevance. First, the

Request is overly broad insofar seeks the entirety of First Acceptance’s file. The Subpoena thus

contemplates transaction documents, loan information, personal identifying information, bank

account numbers and other financials related to the sale of the Property. If there is some

particular document Defendant seeks, it should ask for that — not the entire file for an unrelated

transaction.

Second, in reaching so broadly, the Subpoena becomes harassing because it seeks

confidential information belonging to Plaintiff and the nonparty seller. As set forth above, there

can be no dispute that the file contains personal information and private financial information

belonging to Plaintiff and Plaintiff's principals. Such private and confidential information is

discoverable only if “relevant to any party’s claim or defense.” Here, it is not. The only issue

before this Court is Defendant’s continued occupancy of the Property post-sale and after

repeated demands to vacate. The First Acceptance file ~ for a Property Defendant never owned
>
y

and a Transaction Defendant was not a party to — is not relevant to this action.

In sum, because the Subpoena is harassing and improperly seeks confidential information

with no connectiori to this action, this Court should grant this Motion and issue a protective order

pursuant to Rule 26(C)(7).

1. CONCLUSION

For the foregoing reasons, Plaintiff respectfully requests that the Court grant Plaintiff's

Motion for Protective Order forbidding the Subpoena or, alternatively, limiting the scope of the

Subpoena to protect Plaintiff's Confidential Information and to permit production only of

information reasonably calculated to lead to discoverable material.

Respectfully submitted,

FROST BROWN TODD LLP

/s/ Russell J. Kutell
Russell J. Kutell (0067756)
Nicole Mattingly (0101556)
10 West Broad Street, Suite 2300
Columbus, Ohio 43215-3467
Tel: (614) 464-1211
Fax: (614) 464-1737
Email: rkutell@fbtlaw.com
Email: nmattingly@fbtlaw.com

Attorneys for Plaintiff Berkshire Campgrounds,
LIC
+)

CERTIFICATE OF SERVICE
Thereby certify that a true and accurate copy of the foregoing was served by electronic

mail, on this 14th day of February, 2024, to the following:

Michael Hrabcak, Esq.
HRABCAK & COMPANY LPA
67 East Wilson Bridge Road
Suite 100
Worthington, OH 43085
Phone: (614) 781-1400
Fax: (614) 781-1171
mike@hrabcaklaw.com
Attorney for Defendant

and by ordinary mail, postage prepaid on this 14" day of February, 2024, to the following:

First Acceptance Title Agency
70 Park Avenue West
Suite 300E
Mansfield, Ohio
Non-Party

/s/ Russell J. Kutell
Attorneys for Plaintiff Berkshire
Campgrounds, LLC
E
Ne

unc Pps
DELAN, J
IN THE MUNICIPAL COURT OF
DELAWARE COUNTY, OHIO WA FEB EL PH 2:27

BERKSHIRE CAMPGROUND, LLC, ) CINDY DINOS
) Case No. 23CVG02394 CLERK
Plaintiff,
)
-v- ) Judge
)
BERKSHIRE RV SALES, LLC, )
)
Defendant. )
PLAINTIFF BERKSHIRE CAMPGROUND, LLC’S MEMORANDUM IN
OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER VENUE

Plaintiff Berkshire Campground, LLC (“Berkshire”) opposes the transfer of its forcible

entry and detainer claim to the Common Pleas Court. Defendant Berkshire RV Sales, LLC’s

(“Defendant”) counterclaims are entirely unrelated to any right of possession. Although the

monetary demand in Defendant’s counterclaims require certification of those counterclaims to the

Common Pleas Court, this Court is not required to transfer Berkshire’s claim for forcible entry and

detainer. Such a transfer would delay the eviction proceedings and result in a fundamental denial

of due process. Berkshire respectfully requests that this matter be bifurcated so that Defendant’s

counterclaims be certified to the Common Pleas Court, and the forcible entry and detainer claim

move forward in this Court as scheduled.

“The purpose of the forcible entry and detainer statutes is to provide a summary,

extraordinary, and speedy method for the recovery of possession of real estate in the cases

especially enumerated by statute.” Cuyahoga Metropolitan Hous. Auth. v. Jackson, 67 Ohio St.2d

129, 131, 423 N.E.2d 177 (1981) (overruled on other grounds).

Generally, if a municipal court is without jurisdiction to hear a properly filed counterclaim

in an eviction action because the counterclaim seeks monetary recovery over $15,000, the court
will certify the entire case to the common pleas court. Richwood Homes, Inc. v. Brown, 3 Ohio

App.3d 204, 205, 444 N.E.2d 463 (10th Dist.1981).

Yet, a court also has the discretion to certify only the counterclaim to the Court of Common

Pleas, and to retain jurisdiction of the forcible entry and detainer action, if the counterclaim is not

related to the claim for possession. See Swensen’s Ice Cream Co. v. Cleveland Swensen’s Inc.,

C.P. No. 32584, 1982 WL 609229, *2. The Court in Swenson’s held that if disposition of the

counterclaim “will result a significant delay in the determination of the right of possession, the

municipal court should not hesitate to order a separate trial of the counterclaim under Civ. R.

42(B), certify the counterclaim to the Common Pleas Court, and retain jurisdiction of the forcible

entry and detainer case.” Jd. The Swensen court noted that “{oJnly where the counterclaim is

directly related to the right of possession . . . should the entire case be certified.” Jd. The public

policy, as echoed by the court in Swensen’s, is that “the entire thrust of the municipal court

proceedings should be to afford a speedy and efficient resolution of the forcible entry and detainer

case as was intended by the legislature.” Jd.

The Supreme Court has recognized the Municipal Court’s right to bifurcate portions of a

proceeding where the monetary jurisdiction of the Court has been exceeded. See Behrle v. Beam,

6 Ohio St.3d 41, 41, 451 N.E.2d 237 (1983). Indeed, Ohio courts — including courts in the Fifth

District — routinely bifurcate cases like the one at issue here. See Seventh Urban, Inc. v. Univ.

Circle Property Dev., Inc., 67 Ohio St.2d 19, 20, 423 N.E.2d 1070 (1981) (where monetary amount

sought in counterclaim exceeded jurisdiction of the municipal court, the trial court granted

plaintiff's motion to bifurcate and separated the action in forcible entry and detainer from the

remainder of the case); Lyons v. Link, 5th Dist. Knox No. 03CA000006, 2003-Ohio-2706, 4 8

(bifurcating the issue of restitution from claims for fraud); Bingman v. Fowler, Sth Dist. Licking
“

No. 2006-CA-78, 2007-Ohio-2318, 7 (municipal court entering an order for an eviction and

transferring all other issues to the common pleas court).

Contrary to Defendant’s argument in its Motion to Transfer, none of Defendant’s

counterclaims are “closely connected” to the forcible entry and detainer claim such that all claims

must be adjudicated at the same time. Defendant’s counterclaims include an unjust enrichment

claim related to electric bill payments, and negligence, trespass, and nuisance claims related to

alleged sewage issues. See Def.’s Answer and Countercls. The utility and alleged sewage issues

have no relation to Defendant’s right of possession. As the Swensen court noted, the forcible entry

and detainer claim should not be transferred with counterclaims unless “the counterclaim is

directly related to the right of possession.” See Swensen’s Ice Cream Co., C.P. No. 32584, *2

(emphasis added). Here, the counterclaims are not directly related. Thus, transfer of the forcible

entry and detainer claim to the Court of Common Pleas would contradict R.C. 1923.01’s purpose

of providing a speedy method for recovery of possession of real estate.

For the foregoing reasons, Berkshire respectfully requests that the Court retain jurisdiction

over the forcible entry and detainer claim, move forward with the hearing on that claim, and certify

Defendant’s counterclaims to the Common Pleas Court.

Respectfully submitted,

FROST BROWN TODD LLP

Attorneys for Plaintiff Berkshire Campgrounds,
LLC
a ‘

CERTIFICATE OF SERVICE
Thereby certify that a true and accurate copy of the foregoing was served by electronic

mail, on this 14th day of February, 2024, to the following:

Michael Hrabcak, Esq.
HRABCAK & COMPANY LPA
67 East Wilson Bridge Road.
Suite 100
Worthington, OH 43085
Phone: (614) 781-1400
Fax: (614) 781-1171
mike@brabcaklaw.com
Attorney for Defendant

ds/ Russell J. Kutell
Attorneys for Plaintiff Berkshire
Campgrounds, LLC
wen as
Meus
wr
Hu ct Ser
DELAWARE OHIO
IN THE MUNICIPAL COURT OF
DELAWARE COUNTY, OHIO 2M FEB 14 AN 10: 30
CINDY binove
Berkshire Campground, LLC, Case No. 23 CVG 02394

Plaintiff(s), Judge

Berkshire RV Sales, LLC

Defendant(s).

DEFENDANT BERKSHIRE RV SALES, LLC MOTION To TRANSFER VENUE

Now comes Defendant Berkshire RV Sales, LLC, pursuant to R.C. 1901.22(E) and Civ.R.

13(5), and hereby submits its Motion to Transfer Venue based upon the relief sought by Defendants

will exceed the jurisdictional limit of this Court as well as affect the Forcible Entry & Detainer

pending before this Court. Thus, Defendant respectfully requests that this matter be transferred

from Delaware County Municipal Court to Delaware County Court of Common Pleas. The reasons

for the Motion are more fully set forth in the following Memorandum of Support.

Respectfully Submitted,

ds Michael Hrabcak
Michael Hrabcak (0055716)
HRABCAK & COMPANY, L.P.A.
67 East Wilson Bridge Road
Suite 100
Worthington, OH 43085
(614) 781-1400 Phone
(614) 781-1171 Fax.
mike@hrabcaklaw.com
Altorney(s) for Defendant

h
-
o ne

MEMORANDUM IN SUPPORT

On December 18, 2023, Plaintiff Berkshire Campground, LLC (“Plaintiff”) filed a

complaint for Forcible Entry and Detainer (“Complaint”) against Berkshire RV Sales, LLC

(“Defendant”). Defendant files its answer to the Complaint and counterclaim against Plaintiff

simultaneously with this motion to transfer venue. Defendant has reason to believe that damages

to Defendant will exceed the jurisdictional limits of this Court and thus this matter falls more

appropriately in the Court of Common Pleas.

This case involves a complaint for forcible entry and detainer and counterclaims of

Defendant Berkshire RV Sales. The counterclaims allege damages that are in excess of $25,000.

This Court’s jurisdiction is limited to claims which do not exceed $15,000.! Ifa defendant asserts

acounterclaim in a municipal court which exceeds the jurisdictional amount, the judge shall certify

the proceedings in the case to the court of common pleas.” The Rules of Civil Procedure provide

the same. 3

In addition, the issue of possession is so closely connected to Defendant’s counterclaim it

should be adjudicated at the same time.

Acomplaint for forcible entry and detainer is appropriate in a municipal court; except when

there is a counterclaim for monetary damages that exceed the statutorily permitted limit of damages

in municipal court, the entire case should be transferred to the common pleas court. * The common

TRC. 1901.17.
2 RC. 1901.22 (E).
3 Civ. Rul 13(J).
* Richwood Homes, Inc. v. Brown, 3 Ohio App. 204, 444 N.E.2d-463 (10" Dist. Franklin
1981).

fe
fas as
4

pleas court would then determine the forcible entry and detainer and counterclaim for damages.

Ia.

For the foregoing reasons, Defendant respectfully requests a transfer of venue from the

Municipal Court of Delaware County to the Delaware County Court of Common Pleas. A

proposed Entry is attached hereto for this Court’s convenience.

Respectfully Submitted,

/s/ Michael Hrabcak
Michael Hrabcak (0055716)
HRABCAK & COMPANY, L.P.A.
67 East Wilson Bridge Road
Suite 100
~
Worthington, OH 43085
(614) 781-1400 Phone
(614) 781-1171 Fax
mike@hrabcaklaw.com
Attorney(s) for Defendant

CERTIFICATE OF SERVICE

1 hereby certify that on February 13, 2024, a copy of the foregoing was served on the
following parties via email, pursuant to Civ.R. 5(B)(2)(f):

Russell Kutell
Nicole Mattingly
Frost Brown Todd LLP
10 W.Broad Street, Suite 2300
Columbus, Ohio 43215-3467
tkutell@fbtlaw.com.
nmattingly@fbtlaw.com
Attorney(s) for Plaintiff

¢s/ Michael Hrabcak
Michael Hrabcak (0055716)
os
Sue x. ILEO
EL AWARE
MUNICIPAL COURT
DELAWARE CHIO

“FEB 14 RAID 30
In THE MUNICIPAL COURT OF
DELAWARE COUNTY, OHIO

CHRO BINOVO
Berkshire Campground, LLC, Case No. 23 CVG 02394

Plaintiff(s), Judge

Vv. JURY DEMAND ENDORSED HEREON,

Berkshire RV Sales, LLC

Defendant(s).

ANSWER AND COUNTERCLAIM OF DEFENDANT BERKSHIRE RY Saes, LLC To PLAINTIFF
BERKSHIRE CAMPGROUND, LLC’s COMPLAINT

Now comes Defendant Berkshire RV Sales, LLC, by and through counsel, and for its

answer to Plaintiff's Complaint hereby alleges, avers, and states as follows:

1 Defendant admits the allegations set forth in numbered paragraph 1 of the Complaint.

2. Defendant admits in part, to being an Ohio limited liability company, and denies in part as to

address in paragraph 2 of the Complaint.

“3 Defendant admits the allegations set forth in numbered paragraph 3 of the Complaint.

Defendant admits the allegations set forth in numbered paragraph 4 of the Complaint.

Defendant admits the allegations set forth in numbered paragraph 5 of the Complaint.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the

allegations in paragraph 6 of the Plaintiffs’ Complaint and therefore, deny the same.

Defendant, in regard to paragraph 7 of: the Complaint, admits the allegations in part as to

Defendant’s ownership of the adjacent parcel and deny as to Exhibit 2 being a true and correct

copy of a survey.

Defendant denies the allegations in paragraph 8 of the Complaint.

Defendant denies the allegations in paragraph 9 of the Complaint.

Page I of 10

b
~,
~e we

10. Defendant denies the allegations in paragraph 10 of the Complaint.

11. Defendant denies the allegations in paragraph 11 of the Complaint

12. Defendant denies the allegations in paragraph 12 of the Complaint.

13. Defendant denies the allegations in paragraph 13 of the Complaint.

14. Defendant denies the allegations in paragraph 14 of the Complaint

15. Defendant denies the allegations in paragraph 15 of the Complaint

16. Defendant denies the allegations in paragraph 16 of the Complaint.

17. Defendant repeats the foregoing paragraphs as though fully restated herein.

18. Defendant admits the allegations in paragraph 18 of the Complaint.

19. Defendant denies the allegations in paragraph 19 of the Complaint.

20. Defendant denies the allegations in paragraph 20 of the Complaint.

21. Defendant is without knowledge or information sufficient to form a belief as to the truth of the

allegations in paragraph 21 of the Complaint and therefore deny the same.

22 Defendant in response to paragraph 22 of the Complaint admits the allegations in part as to

conducting business on the Property and deny as to it being without color of title or permission.

23 Defendant denies the-allegations in paragraph 23 of the Complaint.

Affirmative Defenses

24, Defendants incorporates all other paragraphs herein by reference as though fully written herein.

25. Plaintiff failed to state a claim upon. which relief can be granted. -

26. Plaintiff failed to mitigate its damages.

27. Plaintiff claims are barred by Defendants performance.

28. Plaintiff claims are barred by Defendants payment.

29. Plaintiff claims are barred by failure of proper service of 3-day notice to vacate.

Page 2 of 10
Nae

30. Pl

Case Info

Judge

SCHUCK, JAMES P. Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

March 08, 2024

Case Filing Date

March 08, 2024

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Document for BERKSHIRE CAMPGROUND, LLC vs. BERKSHIRE RV SALES, LLC JPS

Preview

Related Topics

Case Info

Parties